Citation Nr: 1201450
Decision Date: 01/13/12 Archive Date: 01/20/12
DOCKET NO. 10-10 107 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana
THE ISSUES
1. Entitlement to service connection for hearing loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Stephen Eckerman, Counsel
INTRODUCTION
The Veteran served on active duty from December 1962 to December 1968.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.
In September 2011, the Veteran was afforded a videoconference hearing before the undersigned Veterans' Law Judge, who is rendering the determination in this claim and was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 2002).
The Board notes that at his hearing, and in a statement, received in September 2011, the Veteran stated that he desired to withdraw his appeals concerning service connection for burns of the hands, and an ear condition. See 38 C.F.R. § 20.204(b) (2011).
REMAND
The Veteran asserts that he has hearing loss, and tinnitus, due to his service. He has asserted that he was exposed to loud during service, to include exposure to artillery, and being close to an exploding shell during training in Texas.
A VA examination report, dated in April 2007, shows that the examiner stated that the Veteran's C-file had been reviewed. The Veteran reported currently having hearing loss and tinnitus. He reported military service with artillery units, and that he used hearing protection some, but not all, of the time. He reported a post-service history of some hunting and use of a motorcycle, and occasional use of a circular saw. He reported a history of employment in the shipping department at a can company for 13 to 14 years, operating a mixer and a small 10-ton locomotive for six months, testing guns and parts at an Army proving grounds for six years, and maintenance at an Air Force base for three to five years. He stated that his tinnitus began in the 1970s. Audiometric test results established bilateral hearing loss, as defined for VA purposes at 38 C.F.R. § 3.385. The examiner stated that "it is less likely as not (less than 50/50 probability) that [the Veteran's] tinnitus is related to his being exposed to acoustic trauma as an artillery gunner in Vietnam." The examiner explained that tinnitus is a subjective complaint which cannot be evaluated objectively, and that he reported that his symptoms began in the 1970s. The examiner concluded that an opinion as to hearing loss could not be provided without resort to speculation because his audiometric test results from service were not in the C-file.
A VA examination report, dated in June 2008, shows that the examiner stated that the Veteran's C-file had been reviewed, and provided a summary of his audiometric test results during active duty, and in May 1982 (Army Reserve examination). The examiner concluded, "It is less likely as not (less than a 50/50 probability) that [the Veteran's] hearing loss is related to or caused by acoustic trauma from artillery noise exposure. The examiner explained that his auditory thresholds were within normal limits both when entering and leaving service. The examiner noted that he actually left service four months after his separation, and that stated it was "possible" that he developed hearing loss in the four months between his separation examination and his actual separation from service.
In reviewing service-connection claims where a VA examination has been performed, the Board must make a determination as to whether the examination report is adequate to make a decision on the claim notwithstanding the fact that the Board may not have found the examination necessary in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Id.
With regard to the April 2008 VA examination report and the opinion as to tinnitus, the examiner concluded that the Veteran's tinnitus was not related to "his being exposed to acoustic trauma as an artillery gunner in Vietnam." However, the Veteran was also subject to loud noise during his training in artillery prior to his Vietnam service, and in fact he is conceded to have been exposed to an explosion at Ft. Hood, Texas, in May 1965. See May 1965 DA Form 8-275-2. The Board further points out that service connection is in effect for burns from this explosion. Therefore, the examiner does not appear to have considered the Veteran's pre-Vietnam inservice noise exposure in the opinion. On remand, another opinion should be obtained. Barr.
With regard to the claim for hearing loss, the June 2008 VA examination report shows that the examiner stated it was "possible" that the Veteran developed hearing loss in the four months between his separation examination and his actual separation from service. However, service connection may not be based on a resort to speculation, or even a remote possibility. See 38 C.F.R. § 3.102 (2011). In addition, the examiner did not discuss how the Veteran's May 1982 Army Reserve audiometric test results may affect any conclusion. Accordingly, on remand, the RO/Appeals Management Center (AMC) should afford the Veteran another examination, to include obtaining an etiological opinion.
The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2011).
Accordingly, the case is REMANDED for the following action:
1. Request that the Veteran identify all sources of treatment for hearing loss and tinnitus symptoms after 2008. After obtaining all necessary authorizations, the RO/AMC should attempt to obtain these identified records and associate them with the Veteran's claims file.
2. After the development requested in the first paragraph of this remand has been completed, the Veteran should be scheduled for an audiological examination of his ears, to include an examination for tinnitus, in order to ascertain the nature and etiology of his hearing loss and tinnitus. The claims folder and a copy of this REMAND should be reviewed by the examiner, and the examiner must annotate the examination report that the claims file was in fact made available for review in conjunction with the examination.
A complete history of acoustic trauma/noise exposure, and perceived hearing loss symptoms in-service, and post-service, should be obtained from the Veteran.
a) The examiner should state whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the Veteran's hearing loss, and tinnitus, was/were caused by his service. In discussing his or her conclusions, the examiner should discuss the relevance, if any, of the Veteran's May 1982 Army Reserve audiometric test results.
b) If the examiner cannot express any part of the requested opinions, the examiner should explain the reasons therefor.
c) The term "at least as likely as not" does not mean within the realm of medical possibility, but rather the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it.
3. Readjudicate the issues on appeal. If either of the determinations remains unfavorable to the appellant, he should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claims for benefits, to include a summary of the evidence, and applicable law and regulations considered. The appellant and his representative should be given an opportunity to respond to the SSOC.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp.2010).
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F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs